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Daily Fantasy Sports As Game of Chance: Distinction Without a Meaningful Difference? N BYU Law Review Volume 2016 | Issue 3 Article 9 April 2016 Daily Fantasy Sports as Game of Chance: Distinction Without a Meaningful Difference? N. Cameron Leishman Follow this and additional works at: https://digitalcommons.law.byu.edu/lawreview Part of the Gaming Law Commons Recommended Citation N. Cameron Leishman, Daily Fantasy Sports as Game of Chance: Distinction Without a Meaningful Difference?, 2016 BYU L. Rev. 1043 (2016). Available at: https://digitalcommons.law.byu.edu/lawreview/vol2016/iss3/9 This Comment is brought to you for free and open access by the Brigham Young University Law Review at BYU Law Digital Commons. It has been accepted for inclusion in BYU Law Review by an authorized editor of BYU Law Digital Commons. For more information, please contact [email protected]. 6.LEISHMAN.FIN2.DOCX (DO NOT DELETE) 11/21/2016 3:03 PM Daily Fantasy Sports as Game of Chance: Distinction Without a Meaningful Difference? I. INTRODUCTION Fantasy sports have become an inseparable component of the modern fan experience. In 2015 alone, more than thirty million Americans spent an estimated eleven billion dollars on fantasy sports.1 Fans, leagues, and policymakers alike have embraced fantasy sports as a new reality in American athletics. However, traditional fantasy sports require a fan to commit many hours to drafts, weekly analysis, and consumption of game broadcasts over the course of a simulated season. These barriers helped spawn a new fantasy phenotype in 2009: daily fantasy sports. Requiring a commitment of only a day or week and incorporating cash prizes for winners, daily fantasy sports have shown enormous potential to disrupt the traditional fantasy ecosystem and threaten to change sports media altogether. DraftKings collected $4 billion in entry fees in 2015 and estimates it will collect $20 billion in 2017.2 In two years, FanDuel grew from forty thousand users to more than one million.3 DraftKings has enjoyed similar growth.4 And for all of the growth of the industry, daily fantasy operators are “still just scratching the surface of where this could all go.”5 While some 1. John McDuling, The bizarre, multibillion-dollar industry of American fantasy sports, QUARTZ (Dec. 13, 2014), http://qz.com/298042/the-bizarre-multi-billion-dollar-industry- of-american-fantasy-sports/. 2. Michael Virtanen, NY court documents show big business of daily fantasy sports, ASSOCIATED PRESS (Nov. 20, 2015, 10:50 PM), http://bigstor y.ap.org/article/38325dafb4fa4d9eac30fcf5143460ee/ny-court-documents- show-big-business-daily-fantasy-sports. 3. Eric Fisher, Daily fantasy pushes to continue growth streak, SPORTSBUSINESS DAILY (March 16, 2015), http://www.sportsbusinessdaily.com/Journal/Issues/2015/03/16/Marketing-and- Sponsorship/Daily-fantasy.aspx. 4. Id. 5. Id. 6.LEISHMAN.FIN2.DOCX (DO NOT DELETE) 11/21/2016 3:03 PM BRIGHAM YOUNG UNIVERSITY LAW REVIEW 2016 have lamented daily fantasy’s recent “implosion,”6 allegedly the result of regulatory interference, this concern is largely unfounded and daily fantasy’s disruptive potential remains—operators have continued to diversify product offerings, enjoy continued public support from professional sports leagues partners, raise funds,7 and retain high-value users responsible for a majority of the sites’ revenue.8 Despite rapid growth and enormous potential, the daily fantasy industry stands at a crossroads: state regulatory and legal action threatens to derail the future of daily fantasy sports.9 As of the publication of this Comment, a majority of states have formally considered daily fantasy sports’ legality.10 Thirteen states consider daily fantasy sports to be gambling, either expressly or on a de facto basis: Alabama,11 Arizona,12 Delaware,13 Georgia,14 Hawaii,15 6. See Don Van Natta Jr., Welcome to the Big Time, ESPN (Aug. 24, 2016), http://www.espn.com/espn/feature/story/_/id/17374929/otl-investigates-implosion- daily-fantasy-sports-leaders-draftkings-fanduel. 7. Curt Woodward, DraftKings takes in $150m, BOS. GLOBE (Sept. 1, 2016), https://www.bostonglobe.com/business/2016/09/01/draftkings-adds-kitty-with-million- investment-round/6l24Gth1ZtKPJznCFRFGCI/story.html. 8. ADAM KREJCIK & CHRIS GROVE, DAILY FANTASY SPORTS INDUSTRY UPDATE – 2016 4 (Feb. 22, 2016), https://courier.bluematrix.com/Courier/EmailDocViewer.action? info=2bm2m1YP%2FZUAk5UFmsa%2FnGIxg7M0iFxpvVixG2tGWzFdlEN36g9VhozI9ulzz NOEdVE6M47tcE4I%0AnMA4TSchXDsNTc2ofCWFW8hFrXNPfen48TWgBu8LnsCRfPQu %2Fv%2FWgQ4gEPaT1e5Z8pFiiXPxjDD%2B%0Aqa1%2BYMP4EqVaISIYFXE%3D%0A. 9. See Van Natta, supra note 6. 10. Ryan Rodenberg, Daily fantasy sports state-by-state tracker, ESPN (Aug. 27, 2016), http://www.espn.com/chalk/story/_/id/14799449/daily-fantasy-dfs-legalization-tracker- all-50-states. 11. Press Release, Attorney General Determines Paid Daily Fantasy Sports Contests are Illegal Gambling, ALA. OFF. OF THE ATT’Y GEN. (April 5, 2016), http://www.ago.state.al.us/News-810. 12. See Van Natta, supra note 6. 13. Online Fantasy Sports Contests for Money Asked to Cease in Delaware, DELAWARE.GOV (July 8, 2016), http://news.delaware.gov/2016/07/08/ofs/. 14. James Gatto & Mark Patrick, Daily Fantasy Sports Update – DraftKings Sues Texas AG; Activity in GA and IN, SHEPPARD MULLIN (March 7, 2016), http://www.lawofthelevel.com/2016/03/articles/fantasy-sports/daily-fantasy-sports-update- draftkings-sues-texas-ag-activity-in-ga-and-in/. 15. Eric Beech & Eric Walsh, Hawaii attorney general says daily fantasy sports contests are illegal, REUTERS (Jan. 27, 2016), http://www.reuters.com/article/us-fantasysports-hawaii- idUSKCN0V530Q. 1044 6.LEISHMAN.FIN2.DOCX (DO NOT DELETE) 11/21/2016 3:03 PM 1043 Daily Fantasy Sports as Game of Chance Idaho,16 Illinois,17 Montana,18 Nevada,19 South Dakota,20 Texas, 21 Vermont,22 and Washington.23 On the other hand, daily fantasy is expressly permitted in Colorado,24 Indiana,25 Massachusetts,26 Mississippi,27 Missouri,28 New York,29 Tennessee,30 and Virginia.31 Though the legal status of daily fantasy sports is state-dependent, all 16. Attorney General Reaches Agreement to Terminate Paid Daily Fantasy Sports Contests in Idaho, IDAHO OFF. OF THE ATT’Y GEN. (May 2, 2016), http://www.ag.idaho.gov/media/newsReleases/2016/nr_05022016.html. 17. Letter from Lisa Madigan, Ill. Attorney Gen., to Elgie R. Sims, Jr., Chairperson, Judiciary – Criminal Comm., and Scott R. Drury, Vice-Chairperson, Judiciary – Criminal Comm. (Dec. 23, 2015), http://www.illinoisattorneygeneral.gov/opinions/2015/15- 006.pdf. Interestingly, some have argued that the language contained in Attorney General Madigan’s letter suggests that any fantasy sports, traditional or daily, constitute gambling under Illinois law if they are played for a monetary entry fee or prize. Steve Silver, Illinois’ Attorney General Thinks All Forms of Fantasy Sports Are Illegal Gambling, ABOVE THE L. (Dec. 23, 2015), http://www.atlredline.com/illinois-attorney-general-thinks-all-forms-of-fantasy-s- 1749559685. 18. Matt Hoffman, DraftKings or FanDuel in Montana? Don’t bet on it., BILLINGS GAZETTE (Oct. 20, 2015), http://billingsgazette.com/news/local/draftkings-or-fanduel-in- montana-don-t-bet-on-it/article_f72b247d-5b9d-50bb-a11c-5dbcb0966abb.html. 19. Howard Stutz, Nevada gaming regulators ban daily fantasy sports from the state, LAS VEGAS REV.-J. (Oct. 15, 2015, 6:30 PM), http://www.reviewjournal.com/business/casinos- gaming/nevada-gaming-regulators-ban-daily-fantasy-sports-the-state. 20. Zachary Zagger, So. Dakota AG Says No Plans to Indict Daily Fantasy Cos., LAW360 (Dec. 7, 2015), http://www.law360.com/articles/735080/so-dakota-ag-says-no-plans-to- indict-daily-fantasy-cos. 21. Letter from Ken Paxton, Tx. Att’y Gen., to Myra Crownover, Chairperson, Comm. on Pub. Health, Tex. House of Representatives (Jan. 19, 2016), https://texasattorneygeneral.gov/opinions/opinions/51paxton/op/2015/kp0057.pdf. 22. Scott Malone, Fantasy sports illegal in Vermont, attorney general’s office says, REUTERS (Jan. 15, 2016), http://www.reuters.com/article/us-fantasysports-vermont- idUSKCN0UT2EN. 23. Walker Orenstein, Washington lawmakers aim to address illegal fantasy sports, SEATTLE TIMES (Jan. 17, 2016, 9:07 AM), http://www.seattletimes.com/seattle- news/politics/washington-lawmakers-aim-to-address-illegal-fantasy-sports/. 24. H.B. 16-1404, 71st Gen. Assemb., 2d Reg. Sess. (Colo. 2016). 25. S.B. 339, 119th Gen. Assemb., 2d Reg. Sess. (Ind. 2016). 26. 940 MASS. CODE REGS. 34.00 (2016). 27. S.B. 2541, 2016 Leg., Reg. Sess. (Miss. 2016). 28. H.B. 1941, 98th Gen. Assemb., 2d Reg. Sess. (Mo. 2016). 29. 2016 N.Y. Sess. Laws Ch. 237 (McKinney). 30. 2016 Tenn. Pub. Acts 978 (codified at Tenn. Code Ann. §§ 47-18-5601–11, 39-17- 501(1), 67-4-3201–05). 31. 2016 Va. Acts 318 (codified at VA. CODE ANN. §§ 59.1-556–61). 1045 6.LEISHMAN.FIN2.DOCX (DO NOT DELETE) 11/21/2016 3:03 PM BRIGHAM YOUNG UNIVERSITY LAW REVIEW 2016 states permit traditional, season-long fantasy sports.32 These divergent treatments may lead one to believe that the gulf between traditional and daily fantasy sports is wide. Indeed, those who advocate prohibition of daily fantasy sports while arguing that traditional fantasy sports should remain unregulated should be prepared to provide a compelling rationale for such varied treatment. Otherwise, such disparate regulation would smack of mere economic protectionism.33 The principal justification for distinguishing between the two fantasy regimes is that daily fantasy sports is a prohibited game of chance, while traditional fantasy sports is a permitted game of skill. In letters demanding that DraftKings and FanDuel cease and desist operations in the state, New York Attorney General Eric Schneiderman offered five factors to support the claim that daily fantasy sports are an impermissible game of chance, while traditional fantasy sports are permitted games of skill.34 Though New York adopted legislation permitting daily fantasy sports with certain restrictions in August 2016,35 the factors set forth in Attorney General Schneiderman’s orders have provided a blueprint for other states in distinguishing between traditional and daily fantasy sports.36 This Comment contends that these factors are insufficient to justify treating daily fantasy sports as an impermissible game of chance 32.
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